Friday, December 16, 2011

The Cautionary Instruction: Congressional hearing repartee falls flat

Last week, the House Committee on Oversight and Government Reform again took up the issue of the ill-fated Department of Justice (DOJ) gun trafficking operation known as “Fast & Furious.”

As the hearing came to a close, Committee Chairman Darryl Issa (R-Calif.), compared Attorney General Eric Holder’s conduct to that of Richard Nixon’s attorney general before Watergate. Holder likened the ongoing congressional inquiry to Senator Joseph McCarthy’s witch hunt for communists in the U.S. government.

Holder told the committee that he does not plan to comply with additional requests for DOJ records, including Holder’s internal emails regarding his response to the operation. “You stand in contempt of Congress unless you have a valid reason,” Issa told Holder.

Holder responded that not sharing the internal department communications with Congress is consistent with the practice of past administrations.

“John Mitchell responded that way, too,” Issa told Holder, referring to Nixon’s former attorney general, who was later convicted of conspiracy, obstruction of justice and perjury in connection with Watergate.

Holder replied, invoking his own historic allusion, “The reference to John Mitchell: Let’s think about that. … As they said in the McCarthy hearings at some point, ‘Have you no shame?’”

Congressman Issa is off-base comparing Holder to John Mitchell and his role in Watergate. Mitchell was no longer part of the Nixon administration during Watergate. He had resigned as attorney general on February 15, 1972, months before the Watergate break-in.

The Watergate Independent Prosecutor Archibald Cox requested eight recorded conversations taped in the White House, two of which included conversations with Mitchell. The request was refused by the White House. Mitchell had nothing to do with that decision.

When Mitchell testified before the senate Watergate Committee it was in his role as campaign director of Nixon’s 1972 re-election campaign. According to Carl Bernstein, certainly an authority on Watergate, "John Mitchell's testimony to the Watergate committee focused on what he called 'the White House horrors,’” crimes committed by Nixon staffers.

Congressman Issa's allusion indicated, at best, a superficial understanding of history -- or, at worst, an ill conceived attempt to lump Attorney General Holder with America's greatest scandal.

Attorney General Holder's retort was close, but also off the mark. He was referring to what had become known as the Army-McCarthy Hearings. In 1954, Senator McCarthy and his staff were accused of using influence to help a former staff member with an army assignment. The Army’s special counsel Joseph N. Welch disclosed to the New York Times that a young lawyer in his law firm was a former member of a left-wing group while in law school.

Although aware of Welch’s disclosure, McCarthy nonetheless confronted Welch about the young lawyer during the nationally televised hearings. Attorney Welch then famously took on McCarthy, "Have you no sense of decency, sir, at long last? Have you left no sense of decency?"

About Matt

An analysis of crime and punishment from the perspective of a former prosecutor and current criminal justice practitioner.
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